HARTFORD, Conn. — Could the Connecticut Supreme Court be delaying a controversial same-sex “marriage” decision until after the November elections to keep voters from protecting marriage in the constitution?
Peter Wolfgang, executive director of the Family Institute of Connecticut, thinks it’s possible. A decision favorable to same-sex “marriage” could galvanize voters to approve a November ballot question calling for a constitutional convention. That convention could lead to an amendment protecting marriage as the union between one man and one woman.
Connecticut has no form of direct popular initiative, Wolfgang said, but voters have the option of convening a constitutional convention once every 20 years. Delegates could then propose that direct measures go on an ensuing ballot.
Pro-family activists want a convention so an amendment can be proposed that defines marriage as the union of a man and a woman. By amending its constitution, Connecticut could hope to avoid the fate of Massachusetts and California, where activist courts redefined marriage by judicial fiat.
“It’s scaring the living daylights out of the proponents of same-sex ‘marriage,’” Wolfgang said. “They’re fighting tooth and nail against the ballot question.”
It’s been nearly 16 months since the court heard oral arguments in the case of Kerrigan & Mock v. the Connecticut Department of Public Health. The lawsuit was filed in 2004 by Boston-based Gay and Lesbian Advocates and Defenders (GLAD) on behalf of eight same-sex couples who were denied Connecticut marriage licenses. The case is nearly identical to 2003’s Goodridge v. Department of Public Health, which led to same-sex “marriage” in Massachusetts.
But the activist group lost the Kerrigan case in 2006. Connecticut Superior Court Judge Patty Jenkins Pittman ruled that the state’s 2005 civil union law gives same-sex partnerships all the benefits of marriage, but that the state constitution does not require “equivalent nomenclature.”
So the group appealed to the state Supreme Court, which heard oral arguments in May 2007.
“The court watchers I’ve talked to said it’s unheard of that it would take this long for a decision. The suspicion is the court will wait until after Election Day,” Wolfgang said.
The ruling that redefined marriage in Massachusetts took six months, and only two months in California earlier this year.
Michael Culhane, executive director of the Connecticut Catholic Conference, said, “I don’t think anyone will ever know the reason for the court’s delay, but I do think it’s unique in terms of this pending decision. We can only speculate as to the motives.”
“This is an extremely unusual length of time,” said Vincent McCarthy of Litchfield, Conn., an attorney with the American Center for Law and Justice. “This kind of case you’d expect the maximum wait to be six months. The issue is not that complex; it’s just whether you can call these unions ‘marriage.’”
Because of a hard-fought compromise, the civil union statute specifically calls marriage the union of a man and a woman. “I’m not privy to [the justices’] thoughts, but courts are known to be political,” McCarthy said.
Homosexual activists this summer made no secret of how Democratic presidential politics played a role in their timing of another recent attack on marriage in Massachusetts that will have nationwide ramifications.
On July 31, the Massachusetts Legislature repealed a law that had protected other states’ sovereignty by prohibiting out-of-state couples from marrying there if they weren’t eligible to marry in their home state.
The homosexual rights lobby in Massachusetts “had held off pushing to overturn the law in deference to the national Democratic Party,” reported the homosexual advocacy newspaper Bay Windows July 30.
“Democrats feared that opening up Massachusetts to same-sex couples from around the country could elevate same-sex marriage into a major campaign issue, hurting Sen. Barack Obama in the November presidential election,” the paper reported.
But then came the May California court decision redefining marriage, and because California had no residency restrictions, the door was opened. Concerns about a public backlash to the repeal hurting Democrats “were moot.”
In fact, Massachusetts Gov. Deval Patrick bragged that the law’s repeal was a step toward toppling the federal Defense of Marriage Act.
Quinnipiac University School of Law professor William Dunlap noted that the timing of the 2003 Goodridge decision caused alarm nationwide and “many people still believe that the backlash may have cost John Kerry the presidential election a year later.”
But, he said, “Speculating about justices’ motives is even riskier than trying to predict what they will do. It’s always possible that the justices, or one or two of them, are slowing the process down to avoid making the decision an issue in the November elections. However, the probable reason is the court isn’t unanimous and may not have even reached a conclusion yet,” he said.
“Ordinarily, the Connecticut Supreme Court hands down a decision a few months, typically between four and six months, after oral arguments, so the Kerrigan case is definitely taking longer than usual. But it’s far from unprecedented.” Dunlap cited four cases within the past two years that took between 11 and 18 months.
No Time Limit
There is no time limit on the court’s deliberations. Connecticut Supreme Court spokeswoman Melissa Farley said statistics are not kept on the length of time between oral arguments and rulings.
Dunlap speculated that the seven justices would be “wary” of holding the case up for political reasons because of ethical concerns. “It’s more likely that the justices simply have not been able to agree on a majority opinion,” he said.
Patricia Galloway of Trumbull, Conn., is one voter who’s a bit more suspicious that politics is behind the delay. She hopes people realize how high the stakes are for the constitutional convention ballot question. “If we can get the right of initiative by means of the convention, our liberal legislators won’t feel like they have such a free ride,” she said.
“However this case is decided,” concluded Dunlap, “the precise language of the court’s opinion — explaining the rationale — will be very important for future cases, not just in Connecticut but in other states whose courts will be looking very closely at what the courts in Connecticut, California, and Massachusetts have done.”
Gail Besse is
based in Boston.